Judge dismisses lawsuit filed by candidates under investigation by Clean Elections Commission

A judge dismissed a lawsuit against the Arizona Citizens Clean Elections Commission filed by two third-party candidates facing investigations into alleged violations of state campaign finance law.

Gubernatorial candidate Risa Lombardo and Secretary of State hopeful Duwayne Collier filed the lawsuit earlier this month after the commission voted to further investigate claims that their campaigns defrauded the Clean Elections program to unlock millions of dollars in public funding.

Both Lombardo and Collier are running under the Arizona Green Party’s banner, though the party itself has disavowed them and called them “sham” candidates.

In order to qualify for Clean Elections funding, candidates must first collect a specific number of $5 qualifying contributions from Arizona voters.

Earlier this year, the Secretary of State’s Office confirmed that both Lombardo and Collier collected those signatures. That unlocked a total of $2.8 million in primary and general election funding for Lombardo and nearly $740,000 for Collier.

But Clean Elections Executive Director Thomas Collins said a preliminary investigation found evidence that the Lombardo and Collier campaigns may not have actually collected those signatures.

And reporting by the Arizona Mirror revealed that at least six alleged donors say they never actually gave money to the campaigns.

“We do have our own field work, and that field work is consistent with what the Mirror has reported,” Collins said during a hearing in August.

In letters to both candidates, Collins warned them that he plans to ask the commission to force them to repay the money.

“I strongly encourage you to seek legal counsel for this matter immediately and cease spending money from the Clean Elections Fund, and contact any vendors you have and advise them to stop providing services utilizing clean elections funding,” he wrote to Lombardo in August.

The lawsuit

Lombardo and Collier filed a lawsuit against the commission, arguing the investigation — and Collins’ letters — effectively put their campaigns on pause.

The candidates asked a judge to block the commission from clawing back public campaign dollars.

Attorney Timothy La Sota, who represents both Lombardo and Collier, argued the commission has no role in certifying those $5 qualifying contributions. And he argued commissioners can’t retroactively cancel the secretary of state’s determination that both Collier and Lombardo collected enough signatures to qualify for funding.

“These actions place the candidates in limbo and make it extraordinarily difficult to run a campaign, and early ballots are mailed out in less than one month’s time,” he wrote in a court filing on Sept. 10.

But Maricopa County Superior Court Judge Melissa Iyer Julian threw out the case, because the investigation is ongoing and the commission hasn’t actually tried to claw back the money yet.

She found that the state law does allow the commission to investigate allegations that Clean Elections candidates have violated the rules governing the program. And she concluded that Collins’ letters to the candidates do not mean the commission has already found them at fault.

“The Commission may reject the anticipated recommendation, proceed on another ground, or take no enforcement action,” Iyer Julian wrote.

The judge said there is a process outlined in state law that gives the candidates the right to appeal the commission’s ultimate decision to an administrative law judge. That judge will then make a recommendation to the commission, which can reject or accept it.

“The administrative process therefore must be completed before Plaintiffs seek judicial review of any final Commission decision,” Iyer Julian wrote.

The appeal

But La Sota argues Lombardo and Collier don’t have time to wade through that administrative process, because the Nov. 4 election is fast approaching.

And he said Collins' letters have effectively stopped them from campaigning, because of the fear they may have to pay back the money they received from the Clean Elections Fund. State law could force the candidates to pay that back from their personal monies if they no longer have enough campaign cash on hand to reimburse the commission.

“Facing a possible illegal ‘repayment order’, the Candidates have suspended their campaigns,” La Sota wrote in a petition for special action filed with the Arizona Court of Appeals.

The appellate court accepted that appeal and set an expedited schedule.